HomeMy WebLinkAbout437747 R & D VENDING (ROGER D SORENSEN) - CONTRACT - RFP - P701 CONCESSIONS EPIC VENDING MACHINESCONCESSION AGREEMENT
EPIC VENDING & VIDEO GAMES
TABLE OF CONTENTS
ARTICLE PAGE
1. Concession Space 1
1.1 Definition of Concession Space 1
1.2 Use for Vending Machines 1
2. Concessionaire's Use of EPIC and the Concession Space
2.1 In General
2.2 Restriction on Routine Machine Maintenance and Preparation
3. Rights of Ingress and Egress 1
3.1 In General 2
3.2 Closures 2
4.
Undertakings of the Concessionaire 2
4.1
Vending Service 2
4.2
Hours of Operation 2
4.3
Concessionaire Personnel 3
4.4
Statements, Recordkeeping and Audits 3
4.5
Physical Interference 3
4.6
Taxes 4
5. Term 4
5.1 Period 4
5.2 Holding Over 4
6.
Fee for Conducting Business 4
6.1
Concession Fee 4
6.2
Definition, Gross Revenues 5
6.3
Time of Payment 5
6.4
Interest on Past Due Amounts 5
6.5
Method of Payment
7. Installation and Services to be Provided by the City 5
7.1 EPIC 5
8. Acceptance and Trade Fixtures 5
8.1 Acceptance 5
8.2 Installation of Equipment and Trade Fixtures 5
8.3 Removal of Equipment, Trade Fixtures 6
8.4 Applicable Law 6
No Claim by Concessionaire
No compensation or claim shall be made by or allowed to Concessionaire by reason of any
inconvenience or annoyance arising from the necessity of repairing any portion of EPIC or
Edora Park, however the necessity may occur.
ARTICLE 11 Indemnification and Insurance
City's Liability
The City shall not in any way be liable for any cost, liability, damage or injury, including cost of
suit and reasonable expenses of legal services, claimed or recovered by any person
whomsoever or whatsoever as a result of any operations, works, acts or omissions performed
on Edora Park by Concessionaire, its agents, employees or contractors unless caused or
contributed to by the negligence or willful misconduct of the City, its employees, agents or
contractors.
Indemnification
Concessionaire covenants that it will indemnify and hold the City harmless from all claims,
demands, judgments, costs and expenses, including attorneys' fees, claimed or recovered
(whether justly, unjustly, falsely, fraudulently or frivolously) by any person by reason of injury to
or death of any individual person or persons, or by reason of damage to, destruction or loss of
use of any property, including City's personnel and City's property, directly or indirectly arising
out of, resulting from or occurring in connection with any operations, works, acts or omissions of
Concessionaire. As used herein the term "Concessionaire" and "City" includes the respective
directors, officers, agents, employees and contractors of Concessionaire and City.
Patent Representation
Concessionaire represents that it is the owner of or is fully authorized to use any and all
services, processes, machines, articles, makes, names or slogans used by it in its operation or
in anyway connected with this Agreement.
Concessionaire Insurance
Without limiting any of the Concessionaire's obligations hereunder, the Concessionaire shall
provide and maintain insurance coverage naming the City as an additional insured under this
Agreement with limits specified in the $1,000,000.
Precautions Against Injury
The Concessionaire shall take all necessary precautions in performing the operations hereunder
to prevent injury to persons and property.
Failure to Insure
Failure of Concessionaire to take out and/or maintain, or the taking out and/or maintenance of
any required insurance shall not relieve Concessionaire from any liability under this Agreement,
nor shall the insurance requirements be construed to conflict with the obligations on
Concessionaire concerning indemnification.
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ARTICLE 12 No Interest in Real Property
Concessionaire agrees that this Agreement constitutes merely a right to use and occupy the
Concession Space for a limited purpose and does not create or convey to Concessionaire any
interest in real property.
ARTICLE 13 Assignment
The Concessionaire shall not assign this Agreement without prior written consent of the City nor
permit any transfer by operation of law of Concessionaire's interest created hereby, other than
by merger or consolidation.
ARTICLE 14 Right of City to Enter, Inspect and Make Repairs
In General
City and their authorized employees, agents, contractors and other representatives shall have
the right (at such times as may be reasonable under the circumstances and with as little
interruption to Concessionaire's operation as is reasonably practicable) to enter upon any part
of the Concession Space for the following purposes:
14.1.1 To inspect such premises at reasonable intervals during regular business hours (or at
any time in case of emergency) to determine whether Concessionaire has complied with and is
complying with the terms and conditions of this Agreement with respect to such premises;
To perform or cause to be performed maintenance and make repairs and replacements.
To make structural additions and alterations.
Obstruction by City
All entries made for the purposes enumerated above shall, except as otherwise provided in
Article 10, Total or Partial Destruction, be without abatement of rent or damage for
inconvenience. However, in the event any entry by City in the Concession Space for the
purpose of making repairs or alterations as provided for in Section 14.1.2 above (other than
repairs necessitated as a result of damage by Concessionaire under Article 9), constitutes a
substantial obstruction to and impairment of Concessionaire's right of use of such Concession
Space, then Concessionaire shall be entitled to a fair and just abatement of the rent for such
premises during the period required by City to make such repairs.
Obstruction by Concessionaire
In the event that any personal property of Concessionaire shall obstruct the access of the City,
their officers, employees, agent or contractors, or a utility company furnishing utility service to
any of the existing utility, mechanical, electrical and other systems, and thus shall interfere with
the inspection, maintenance or repair of any such system, Concessionaire shall move such
property, as directed by the City or said utility company, in order that access may be had to the
system or part thereof for inspection, maintenance or repair. If Concessionaire shall fail to so
move such property after direction from the City or said utility company to do so, the City or the
utility company may move it without liability for damage sustained in moving.
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No Eviction or Abatement
Exercise of any or all of the foregoing rights in this Article, by the City, or others under right of
the City, shall not be, nor be construed to be, an eviction of Concessionaire, nor be made the
grounds for any abatement of rental nor any claim or demand for damages against the City,
consequential or otherwise, except claims for damages to person or property caused solely by
the negligence of the City.
ARTICLE 15 Default, Rights of Termination
15.1 Default by Concessionaire
Time of payment and performance is of the essence of this Agreement. Concessionaire shall
be in default under this Agreement upon the occurrence of any one or more of the following
events:
15.1.1 Concessionaire's failure to pay any fee or other charge when due and within ten (10)
working days after notice from City of such nonpayment.
15.1.2 Concessionaire's failure to provide any statement when due, and within ten (10) working
days after notice from City of such failure.
15.1.3 Concessionaire's failure to maintain the insurance required above.
15.1.4 Concessionaire's assignment of any right hereunder in violation of Article 13.
15.1.5 Concessionaire's failure to perform, keep or observe any of the terms, covenants or
conditions within seven (7) days (or such longer time as may be necessary to cure provided that
cure is commenced within the initial seven [7] days) after notice from the City specifying the
nature of the deficiency with reasonable particularity and the corrective action that is to be taken
within such period to cure the deficiency.
15.1.6 The filing by Concessionaire of a voluntary petition in bankruptcy, the filing of an
involuntary petition in bankruptcy against Concessionaire, the taking of possession of all or
substantially all of Concessionaire's assets pursuant to proceedings brought under the
provisions of any federal reorganization act or the appointment of a receiver of all or
substantially all of Concessionaire's assets and the failure of Concessionaire to secure the
return of such assets and/or the dismissal of such proceeding within ninety (90) days after the
filing.
15.1.7 The taking of possession of the Concession Space, or any portion thereof, or all or
substantially all of the assets of Concessionaire by virtue of any attachment, execution or levy of
any judicial process in any action instituted against Concessionaire in any court of competent
jurisdiction and the failure of Concessionaire to secure the release of such attachment,
execution or levy within sixty (60) days from the date of the taking of such possession.
15.1.8 The assignment by Concessionaire of its assets for the benefit of creditors.
15.2 City's Remedies on Default
15.2.1 In the event of a default by Concessionaire, the City may terminate this Agreement by
notice in writing to Concessionaire. In the alternative, the City may elect to keep the Agreement
in force and work with Concessionaire to cure the default. If this Agreement is terminated,
Concessionaire's liability to City for damages and rent shall survive the termination, and the City
01
may re-enter, take possession of the Concession Space and remove any persons or property by
legal action or by self-help with the use of reasonable force and without liability for damages.
15.2.2 Following re-entry or abandonment, City may make arrangements for use of the
Concession Space by others and in that connection may make any suitable alterations or
refurbish the Concession Space, but City shall not be required to make such arrangement for
any use or purpose.
Rights and Remedies Reserved
It is understood and agreed that any rights and remedies reserved pursuant to this Article are in
addition to any other rights or remedies the City may have pursuant to this Agreement or to
applicable law to seek judicial enforcement, damages or any other lawful remedy.
ARTICLE 16 Miscellaneous Provisions
Cumulative Rights
All remedies provided in this Agreement shall be deemed cumulative and additional and not in
lieu of, or exclusive of, each other or of any other remedy available to the City, or
Concessionaire, at law or in equity, and the exercise of any remedy, or the existence herein of
other remedies or indemnities shall not prevent the exercise of any other remedy.
Non -Waiver
The failure by either party to exercise any right or rights accruing to it by virtue of the breach of
any covenant, condition or agreement herein by the other party shall not operate as a waiver of
the exercise of such right or rights in the event of any subsequent breach by such other party,
nor shall such other party be relieved thereby from its obligations under the terms hereof.
Non -liability of Individuals
No director, officer, agent or employee of either party hereto shall be charged personally or held
contractually liable by or to the other party under any term or provision of this Agreement or of
any supplement, modification or amendment to this Agreement because of any breach thereof,
or because of its or their execution or attempted execution of the same.
Limitations on EPIC Use
Concessionaire shall not use, or permit the use of EPIC, or any part thereof, for any purpose or
use other than those authorized by this Agreement.
Governing Law
This Agreement shall be performable and enforceable in Larimer County, Colorado, and shall
be construed in accordance with the laws of the State of Colorado.
Benefits
This Agreement is made for the sole and exclusive benefit of the City and Concessionaire, their
successors and assigns, and is not made for the benefit of any third party.
Construction
In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for
or against any party hereto on the basis that such party did or did not author the same.
li[7
Successors and Assians
All covenants, stipulations and agreements in this Agreement shall extend to and bind each
party hereto, its legal representatives, successors and assigns.
Headings
The titles of the several articles of this Agreement are inserted herein for convenience only, and
are not intended and shall not be construed to affect in any manner the terms and provisions
hereof, or the interpretation or construction thereof.
Attorney Fees
In the event any legal action or proceeding is brought to collect sums due or to become due
hereunder or any portion thereof or to enforce compliance with this Agreement for failure to
observe any of the covenants of this Agreement, the losing party agrees to pay to the prevailing
party such sums as the Court may judge reasonable attorneys' fees and costs to be allowed in
such action or proceeding and in any appeal therefrom.
Entire Agreement
This Agreement which is the entire agreement between the parties hereto, supersedes all prior
agreements, understandings, warranties or promises between the parties hereto, whether
written, spoken, or implied from the conduct of the parties hereto.
Severabilitv
In the event any covenant, condition or provision of this Agreement is held to be invalid by final
judgment of any court of competent jurisdiction, the invalidity of such covenant, condition or
provision shall not in any way affect any of the other covenants, conditions or provisions of this
Agreement, provided that the invalidity of any such covenant, condition or provision does not
materially prejudice either City or Concessionaire in their or its respective rights and obligations
under the valid covenants, conditions or provisions of this Agreement.
Surrender of Possession
Upon the expiration of this Agreement or its earlier termination as herein provided,
Concessionaire shall remove all of its property from Edora Park and surrender entire
possession of its rights at Edora Park to City and its improvements in accordance with Section 9
above, unless this Agreement is renewed or replaced.
City Representative
The City designates Mike McDonnell, Program Administrator, as its representative who shall
make, within the scope of his or her authority, all necessary and proper decisions with reference
to this Agreement. All requests for contract interpretations, amendments and other clarifications
or instructions shall be directed to the City Representative.
Notices
Notices permitted or required to be given under this Agreement shall be in writing and shall be
deemed given upon personal delivery or upon deposit in the United States Mail, certified, return
receipt requested, postage fully prepaid, addressed as follows or to such other address as the
parties may designate from time to time by notice given in accordance with this Section:
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If City:
If Concessionaire:
City of Fort Collins Purchasing
R & D Vending
PO Box 580
2300 Silver Trails
Fort Collins, CO 80522
Fort Collins, CO 80526
Roger Sorensen, 225-0294
Paragraph Headings
Paragraph headings contained herein are for convenience and reference, and are not intended
to define or limit the scope of any provisions of this Agreement.
Schedules and Exhibits
Whenever reference is made in this Agreement to a Schedule or an Exhibit, unless otherwise
specifically expressed to the contrary, such Schedule or Exhibit shall be deemed attached to
and by the reference incorporated in this Agreement.
Force Majeure
Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if
prevented from performing any of its obligations hereunder by reason of strikes, boycotts, labor
disputes, embargoes, shortage of energy or materials, acts of God, act of public enemy, acts of
superior governmental authority, weather conditions, rights, rebellion, sabotage or any other
circumstances for which it is not responsible or that are not within its control.
No Limitation on General Powers
Nothing in this Agreement shall be construed as in any way limiting the general powers of the
City to fully exercise their governmental functions or their obligations under any bond covenants
or federal, state or local laws, rules or regulations.
No Relationship
Nothing contained herein shall be deemed or construed by the parties hereto nor by any third
party as creating the relationship of principal and agent or a partnership or a joint venture
between the parties hereto.
Survival
To the extent necessary to carry out all of the terms and provisions hereof, the said terms,
obligations and rights set forth herein required shall survive and shall not be affected by the
expiration or termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
written above.
THE CITY OF FORT COLLINS, COLO�R/ADO
Jams . O'Neill II, CPPO
Director of Purchasing and Risk Management
DATE: !& 0r/ g-�
Roger Sorensen
Doing business as R & D Vending
By:
DATE:
13
Exhibit A
Equipment Description
Vending Machines & Video Games
Qty
Description
2
Snackshop Machines, LCM2 series, 700 selections each
2
Pop Machines, 500 cans per unit
1
Beverage Merchandiser, 500 bottles per unit
2
Money Changers, AC2001 series
2
Video Games
14
TABLE OF CONTENTS
ARTICLE
9. Damage to EPIC by Concessionaire
PAGE
6
10.
Total or Partial Destruction 6
10.1
Concession Space Rendered Untenantable 6
10.2
Concession Space Tenantable 6
10.3
Exception for Damage Caused by Concessionaire 6
10.4
No Claim by Concessionaire 7
11.
Indemnification and Insurance 7
11.1
City's Liability 7
11.2
Indemnification 7
11.3
Patent Representation 7
11.4
Concessionaire Insurance 7
11.5
Precautions Against Injury 7
11.6
Failure to Insure 7
12. No Interest in Real Property 8
13. Assignment 8
14. Right of City to Enter, Inspect and Make Repairs 8
14.1 In General 8
14.2 Obstruction by City 8
14.3 Obstruction by Concessionaire 8
14.4 No Eviction or Abatement 9
15. Default of Rights of Termination 9
15.1 Default by Concessionaire 9
15.2 City's Remedies on Default 9
15.3 Rights and Remedies Reserved 10
16. Miscellaneous Provisions 10
16.1 Cumulative Rights 10
16.2 Non -Waiver 10
TABLE OF CONTENTS
ARTICLE
PAGE
16.3
Non -liability of Individuals
10
16.4
Limitations on EPIC Use
10
16.5
Governing Law
10
16.6
Benefits
10
16.7
Construction
10
16.8
Successors and Assigns
11
16.9
Headings
11
16.10
Attorney Fees
11
16.11
Entire Agreement
11
16.12
Severability
11
16.13
Surrender of Possession
11
16.14
Authority of City Representative
11
16.15
Notices
11
16.16
Paragraph Headings
12
16.17
Schedules and Exhibits
12
16.18
Force Majeure
12
16.19
No Limitation on General Powers
12
16.20
No Relationship
12
16.21
Survival
12
Signature Page 13
Exhibit A 14
EPIC VENDING &VIDEO GAMES
CONCESSION AGREEMENT
R & D VENDING
This Concession Agreement, hereinafter called the "Agreement", made and entered into as of
the first day of January, 1999, by and between The City of Fort Collins, Colorado, a municipal
corporation, hereinafter called "City", and Roger Sorensen, dba R & D Vending, a sole
proprietorship, hereinafter called "Concessionaire."
WITNESSETH:
ARTICLE 1 Concession Space
Definition of Concession Space
For the purposes of this Agreement, the "Concession Space" shall mean the area located on
the north side of the lobby by the entry doors, an area to the left of the staircase and an area
east of the cashiers desk. The Concession Space is located within EPIC, a building located
within Edora Park at 1801 Riverside, Fort Collins, CO.
Use for Vending Machines
The Concessionaire shall have the use of the designated portion of the Concession Space for
the purpose of offering food, beverages, video games and related services through vending
machines as defined in Article 2 hereof.
ARTICLE 2 Concessionaire's Use of EPIC and the Concession Space
In General
The City grants to Concessionaire the following rights and privileges:
2.1.1 Subject to other limitations expressed in this Agreement, the right to exclusive use of the
Concession Space and the right to use in common with others the public areas of EPIC and
public roads located in Edora Park, in conjunction with providing concession services (and for
no other purpose) in such spaces and manner as may be prescribed by the City.
2.1.2 The right to supply and, and if necessary, to conduct emergency repairs as required upon
its machines in the Concession Space.
Restriction on Routine Machine Maintenance and Preparation
Except as otherwise provided at Section 2.1.2, no preparation of any nature of Concessionaire's
machines, including but not limited to: washing, cleaning, minor repairs or maintenance for
operation shall be performed at EPIC or surrounding Edora Park.
ARTICLE 3 Rights of Ingress and Egress
In General
Concessionaire shall have the right of ingress and egress to and from the Concession Space
and EPIC for Concessionaire's employees, agents and invitees to the extent reasonably
1
necessary in connection with the conduct of Concessionaire's business under this Agreement.
Areas designated as restricted areas by the City shall be excluded.
Closures
The City may, at any time, temporarily or permanently, close or consent to or request the
closing of any roadway or any other way at, in or near EPIC or Edora Park, presently or
hereafter used as such, so long a reasonable and safe means of ingress and egress as
provided above remains available to Concessionaire.
ARTICLE 4 Undertakings of Concessionaire
Vending Service
Concessionaire agrees to:
4.1.1 Provide, within seven (7) days of the execution of this Agreement, machines as set forth
in Exhibit A, Equipment Description, consisting of one (1) page, and incorporated herein by this
reference.
4.1.2 Concessionaire shall display the name of the firm on each machine. Notices of refund
procedure must be prominently displayed on each machine.
Services provided by the Concessionaire shall consist of the resupply of all food, beverage and
merchandise and refund envelopes daily in order to adequately serve the demand for such
items at the EPIC.
4.1.4 Concessionaire acknowledges the desire and obligation of the City to provide the public
high quality food, beverages and merchandise and a high level of public service. Therefore,
Concessionaire agrees to offer for sale from the Concession Space only high quality food,
beverages, video games, and merchandise at prices not to exceed the prices customarily
charged for similar items in Fort Collins area vending operations. If, in the opinion of the City,
the selection of items offered is inadequate or not of high quality, if any of the prices are
excessive or if any of the items are found to be objectionable for display and/or sale in a public
facility, the City Representative shall meet and confer with Concessionaire regarding such
matters. However, Concessionaire acknowledges that the City's determination as to the same
shall be conclusive. Failure of Concessionaire to correct, rectify or modify its prices or quality
within five (5) days of being advised in writing to do so shall be cause for default.
4.1.5 Concessionaire may not add, remove or otherwise vary its services from the machines
listed in Section 4.1.1 without the prior written authorization of the City Representative.
Hours of Operation
The Concessionaire will be required to provide services daily in the Concession Space. At a
minimum, the services shall be available for use from 5:30 a.m. to 1:00 a.m.
2
Concessionaire Personnel
Concessionaire shall control the conduct and demeanor of its agents and employees. Upon
objection from the City concerning conduct or demeanor of any such person, the
Concessionaire shall immediately take all lawful steps to remove the cause of the objection. If
the City so requests, Concessionaire agrees to supply and require its employees to wear
suitable attire and to wear or carry badges or other suitable means of identification, the form for
which shall be subject to prior and continuing approval of the City.
Statements. Recordkeeping and Audits
Concessionaire agrees that it will prepare and deliver to the City, on or before the twentieth
(20th) day of each calendar month during the term of this Agreement, a statement which shall
be subscribed and certified to as correct by Concessionaire, or its authorized representatives,
showing a duly certified monthly operating statement on forms prescribed, or approved, by the
City, showing all gross revenues, as defined in Section 6.2 hereof, from Concessionaire's
vending and video game operations at EPIC for the previous month. The certification shall be
by an official of the Concessionaire who is responsible for the financial records of the
Concessionaire at EPIC. Such statement must report gross revenues on a per machine basis.
4.4.1 Within ninety (90) days following the end of each twelve (12) month period of operation
and within the same number of days following termination or cancellation of this Agreement, the
Concessionaire, at its sole expense, shall submit to the City an audited statement of its financial
performance at EPIC including an accounting of all revenue and expenses.
4.4.2 Concessionaire shall keep books and records in accordance with good accounting
practice and such other records as are satisfactory to the City. All books and records of
Concessionaire, as aforesaid, shall be open for inspection by authorized representatives of the
City at all reasonable times during business hours. If such an inspection is made by said
authorized representatives and it is determined as a result thereof that Concessionaire has
underpaid the City by more than five percent (5%) of the amount to which it is entitled under
Article 6 hereof, Concessionaire shall reimburse the City for their costs of making such
inspection of said books and records, and this obligation of reimbursement shall be in addition
to all other obligations of Concessionaire hereunder. Termination of this Agreement for fraud
shall not serve to nullify such obligation. With the payment of monthly fees and rentals each
month as provided above, Concessionaire shall submit to the City a detailed statement showing
gross revenue from the operation of the concession for the preceding calendar month. These
reports shall detail sales on a per machine basis and in such reasonable detail and breakdown
as may be required by the City.
4.4.3 The Concessionaire hereby grants to the City the right to audit Concessionaire's books
and records for its operation at EPIC and agrees to make available to the City, or its authorized
representative, at any time, Monday through Friday inclusive, between the hours of 9:00 a.m.
and 5:00 p.m., at the offices of the City or Concessionaire's home office, at the City's election,
all records, records, books and pertinent information as may be required for audit purposes.
4.4.4 The Concessionaire shall maintain special accounting equipment adequate for providing
records of gross revenue as specified in this Section.
Physical Interference
Concessionaire shall not do, nor permit to be done, anything which may interfere with the
effectiveness or accessibility of the drainage system, sewerage system, fire protection system,
sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located in EPIC.
3
Licensing and Taxes
Contractor must comply with all health regulations of the Federal Government, the State of
Colorado, the City of Fort Collins, Larimer County and any other inspection and control
measures the City of Fort Collins may require. Concessionaire agrees to pay all lawful taxes,
assessments and payments -in -lieu which, during the term of this Agreement or any extension
hereof, may become a lien of which may be levied or charged by the State, County, City of Fort
Collins or other tax -levying body upon or with respect to the Concession Space, upon any
taxable interest acquired by the Concessionaire in this Agreement, or any taxable possessory
right which Concessionaire may have in or to the Concession Space or facilities or the
improvements thereon, by reason of Concessionaire's occupancy thereof, or otherwise, as well
as all taxes on taxable property, real or personal, owned by Concessionaire or taxes on
Concessionaire's operations or activities in or about the Concession Space. However, except
as otherwise permitted by this Agreement, no charges, fees or taxes of any nature shall be
imposed by the City solely upon Concessionaire for exercising any right or privilege granted by
the City to Concessionaire in this Agreement with respect to use of EPIC. Nothing herein shall
prevent Concessionaire from protesting, through due process, any taxes levied.
ARTICLE 5 Term
Period
The term of this Agreement shall commence on January 1, 1999 and, unless terminated sooner,
expire on December 31, 1999. In addition, at the option of the City, the Agreement may be
extended for additional one (1) year terms, not to exceed an additional four (4) such terms.
Changes in the Concession Agreement shall be negotiated by and agreed to by both parties.
Holdina Over
In the event that the Concessionaire, or its successor in interest, if any, shall remain beyond the
term set forth herein, although no right to remain is given by this Article, it is the intention of the
parties and it is hereby agreed that a right of use from month -to -month shall then arise subject
to all provisions and conditions of this Agreement in connection with such right, except that the
City shall have the sole right to determine reasonable fees for any holdover period.
ARTICLE 6 Fee For Conducting Business
6.1 Concession Fee
For the privilege of conducting the concession operations hereunder, the Concessionaire shall
pay to the City an amount equal to nineteen percent (19%) of its gross revenues derived from its
vending operations at EPIC and an amount equal to forty percent (40%) of its gross revenues
derived from its video games.
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Definition. Gross Revenues
Gross revenues shall be defined as the proceeds from all vending operations, whether such
proceeds are actually collected through the machines or by other arrangement for payment for
such items. For each machine, gross revenues shall be computed by adding the beginning
inventory and any additions of inventory within the machine and then subtracting the ending
inventory, at vended price less sales tax. Video game gross sales shall be computed by
subtracting the beginning game counter reading from the ending reading and multiplying the
result by the game price. Concessionaire shall not be entitled to any set-off, rebate or refund by
reason of non -collection.
Time of Payment
The Concessionaire shall pay the Concession Fee to the City, on a monthly basis but, in no
event, later than thirty (30) days after the close of the preceding month.
Interest on Past Due Amounts
Concessionaire shall pay interest on all past due amounts at the rate of eighteen percent (18%)
per annum from the due date, until paid.
Method of Payment
Payment for all fees under Article 6 shall be by check or money order payable to the order of
"City of Fort Collins" and shall be mailed or personally delivered to the Program Administrator at
the address specified in Section 1.1.
ARTICLE 7 Installations and Services to be Provided by the City
EPIC
In the operation of the Concessionaire's activities hereunder, the City shall provide within EPIC:
1. Four (4) electrical outlets in the Concession space;
2. Lighting fixtures for general area illumination;
3. Heat and air conditioning; and
4. Unmetered electricity in the Concession Space.
ARTICLE 8 Acceptance and Trade Fixtures
8.1 Acceptance
On the date of commencement of this Agreement, Concessionaire shall acknowledge that it
accepts the Concession Space "as is."
8.2 Installation of Equipment and Trade Fixtures
No equipment or trade fixtures, including additional equipment and other personal property used
by Concessionaire in its business, whether or not attached to EPIC or any Improvements
thereon, shall be installed without the prior written approval of the City.
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8.3 Removal of Equipment. Trade Fixtures
Concessionaire shall have the right at any time during the term of this Agreement or upon
termination and within thirty (30) days thereafter, to remove all trade fixtures and equipment
subject to any valid lien the City may have thereon for unpaid rents. Any property not so
removed by Concessionaire upon termination shall become a part of the realty on which it is
located and title thereto shall vest in the City.
Applicable Law
All trade fixtures or equipment installed by Concessionaire pursuant to this Section shall be
subject to and conform in all respects to the applicable statutes, ordinances, building codes,
rules and regulations of all governmental agencies which have jurisdiction over such matters.
ARTICLE 9 Damage to EPIC by Concessionaire
9.1 Concessionaire shall be liable for and shall repair or cause to be repaired within fifteen (15)
days after occurrence any damage to EPIC, including the Concession Space, caused by
Concessionaire, its board members, officers, agents, employees or anyone acting under its
direction and control, ordinary wear and tear excepted. If the damage for which Concessionaire
is liable is to the Concession Space, Concessionaire shall continue to be liable for all rent owed
for the Concession Space, even if it has been rendered untenantable.
ARTICLE 10 Total or Partial Destruction
Concession Space Rendered Untenantable
In case, during the term of this Agreement, the Concession Space or any part thereof shall be
destroyed or shall be so damaged by fire or other casualty so as to be rendered untenantable or
unusable, then, in such event, at the option of the City or Concessionaire, the term hereby
created shall cease; and this Agreement shall become null and void from the date of such
damage or destruction; and Concessionaire shall immediately surrender the Concession Space
and its interest therein to the City; provided, however, that the City or Concessionaire shall
exercise such option to so terminate this Agreement by notice, in writing, delivered to the other
party within thirty (30) days after such damage or destruction. In the event neither the City nor
Concessionaire shall elect to terminate this Agreement, this Agreement shall continue in full
force and effect; and the City shall repair the Concession Space, equipment, signs and trade
fixtures or other personal property installed by Concessionaire, with all reasonable speed,
placing the same in as good a condition as it was at the time of the damage or destruction and
for that purpose may use the proceeds of any insurance payable on account of such damages.
In any event, Concessionaire shall remove all rubbish, debris, merchandise, furniture,
furnishings, equipment and other items of its personal property within five (5) days after request
being made by the City.
Concession Space Tenantable
If the Concession Space shall be only injured by fire or the elements to such extent so as not to
render the same untenantable and unfit for use and occupancy, the City shall repair the same
with all reasonable speed. Concessionaire's rent shall abate proportionately for any temporarily
untenantable portion.
Exception for Damage Caused by Concessionaire
In the event of damage caused by Concessionaire as addressed in Article 9 of this Agreement,
the provisions of Article 9 shall govern in any conflict between Article 9 and Article 10.
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